Журнал ЗАКОН

Case Comment to the Judgment of the Chamber for Economic Disputes of the SC RF No. 301-ЭС24-10122, 22 November 2024 The reason for writing the article was the case of the company ‘Zarechnaya’, which was accused by the antimonopoly authority of concluding an anticompetitive agreement with its three counterparties. The Supreme Court supported the antimonopoly authority, pointing out the violation of the principles of the Procurement Law by the customer. This case once again raises the question of the limits of what is permitted for participants in the said legal relationship. The author comes to the conclusion that the approach chosen by the legislator is erroneous, since the introduction of special regulation that limits freedom of contract presupposes not only the enumeration of the principles of such regulation, but also the introduction of relevant norms that define the boundaries of acceptable behaviour of participants in these legal relations.

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Keywords: procurement, anticompetitive agreement, contract, principles of law

Case Comment to the Judgment of the Chamber for Civil Cases of the SC RF No. 55-КГ25-2-К8, 15 July 2025 Using the commented case as an example, the author analyses contemporary approaches to the admissibility of substituting the method of enforcement of a court-confirmed claim, including in the form of a settlement agreement in enforcement proceedings. Despite the apparent simplicity of the issue and the long-standing practice of applying the relevant provisions, even at the level of cassation courts, a formal approach is not uncommon, where arguments about the unconditional guarantee of enforceability of the original court ruling outweigh the parties’ freedom to settle the dispute at any stage, as well as the legitimate interests of the claimant. As a result, settlement agreements, despite all the legislator’s efforts, clarifications from higher courts, and procedural doctrine developments, remain rare, and enforcement indicators are discouraging. Judges still view other forms of voluntary modification of the legal relationship by the parties at the post-judicial stage with scepticism: waiver of claims and alteration of the mode of enforcement.

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Keywords: enforcement proceedings, settlement agreement, waiver of claim, mode and procedure of enforcement

The article is devoted to the study of the application of the theory of synallagma in restitutionary and reversive obligations. Its insufficient development in Russian civil law doctrine leads to uncertainty regarding the sequence of performance of reciprocal obligations, including upon termination of the contract and its invalidation. The first part of the article provides a detailed analysis of the principle of simultaneous exchange of interrelated claims and the mechanism of its implementation. Based on comparative experience, the issue of the admissibility of extrapolating the theory of synallagma to restitutionary legal relations is also examined. The author, from a critical standpoint, notes that in Russian law the problem of returning everything received under an invalid transaction is traditionally resolved through the application of the model of mandatory bilateral adjudication, which he regards as both conceptually and practically contentious.

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Keywords: synallagma, restitution, principle of simultaneous exchange, reversive obligations, conditional judicial decision, mandatory bilateral adjudication, exceptio non adimpleti contractus

The article analyses a new law on digital intermediary platforms. However, its title is formulated more broadly as “On Certain Issues of Regulating the Platform Economy in the Russian Federation”. This Law is intended to define a digital intermediary platform as a social reality, as well as to identify the persons involved in its operation (operators, in certain cases owners and operators, partners and users). At the same time it establishes specific requirements not only for these participants, but also for the contracts concluded between them, as well as for a number of special concepts, including personal accounts, product, works and services listings, order pick-up and delivery points, search results, ratings, and others. Despite the fact that the analysed Law proceeds from regulating relations on platforms as civil-law relations, it disregards specific provisions of the Civil Code, which constitutes the subject of the author’s criticism.

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Keywords: marketplaces, platforms, aggregators, commercial intermediation, electronic commerce

Agents, including trustees and corporate directors, very often engage in investing on behalf of their principals. Requirements of reasonableness and bona fide conduct apply to investing, as well as to other actions of agents. At the same time, determining the content of the reasonableness requirement is often problematic, as the question arises as to how to distinguish the consequences of market risk from the negligence of the manager. Unlike in several foreign legal systems, it is hardly possible to say that Russia provides a sufficiently clear answer to this question. This article aims to contribute to filling this gap. It is published in two parts. In the first part, we substantiate the legitimacy of applying the general standard of investment management to various categories of agents and describe the factors that influenced its formation. We also consider foreign approaches to defining the reasonableness of investments and analyse the fragmentary regulation of this issue in Russian law.

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Keywords: investments, duty of care, agency problem, business judgment rule, prudent investor rule

The article examines the provisions of the Civil Code of the Russian Federation and special laws on business associations that previously prohibited single-member companies from being the sole participants in other companies, thereby forming a multi-tiered corporate structure (comparable to ‘cascading ownership’, commonly referred to as ‘matryoshka doll companies’). The apparent purpose of the prohibition was to prevent the abuse of legal entities to limit the liability of true beneficial owners. However, the effectiveness of this prohibition has always been questioned, which, along with certain declared socio-economic objectives, ultimately led to removal of the prohibitive provisions from the legislation.

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Keywords: cascading ownership, one-man company, corporate law, legal entity, corporate structures

The author analyses the legal nature of the jurisdictional criterion for secondary proceedings in cross-border insolvency and examines foreign judicial practice concerning the application of this criterion. The article substantiates the superiority of the classical formulation of the jurisdictional criterion for secondary proceedings (establishment) over its interpretation in Russian law. It is also noted that the domestic surrogate for establishment (property/permanent establishment) does not correspond to the understanding of establishment adopted in other jurisdictions. Such a lack of alignment may, in the long term, lead to negative consequences in the form of different classifications of the same proceedings in Russia and abroad.

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Keywords: cross-border bankruptcy, cross-border insolvency, modified universalism, non-main proceedings, secondary proceedings, establishment, jurisdiction, UNCITRAL

This article focuses on the matter of how to configure the contract terms for indemnification for losses, considering different types of pecuniary losses and the possibility of their coverage under Article 406.1 of the Civil Code of the Russian Federation. The author introduces an original multi-stage classification of such losses and, on that basis, formulates conclusions regarding permissible models of indemnity clauses under Russian law. Particular attention is paid to the potential overlap between indemnification for losses and compensation of damages where the parties seek to bring within the scope of Article 406.1 losses arising from events causally linked to a breach of contractual obligations. The author concludes that the coverage of losses caused by the wrongful conduct of the debtor by way of indemnity is incompatible with the legislative rationale underlying the introduction of Article 406.1 of the Civil Code of the Russian Federation.

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Keywords: indemnification for losses, compensation of damages, freedom of contract, indemnity